Customizing Your Will To Your Desires

Once upon a time, people could simply declare their Wills and such Wills would be valid, even in Nigeria.

Unbelievable? There is abundant proof.

In the 1961 judicial matter of Bankole v. Tapo, a lifetime oral disposition of land by the deceased was upheld to suffice for transferring property to a beneficiary. In the judicial matter of Adeyinka v. Ibidunni, the court even held that an Oral Will need not be made by the Testator on his deathbed; it is valid once the Testator orally makes the Will before two or more credible witnesses.

If this was true, why does Section 9 of the Wills Act in Nigeria subsequently require that a Will must be in writing as a condition for validity? Well, it turns out the susceptibility of oral wills to distortion made them extremely difficult to prove and thus unreliable.

The now-mandatory written Wills, called statutory Wills, come in different types. Can you identify which would be most appropriate for you?

1. Simple Wills

   The Simple Will is so named because there is no complexity in creating one.

   A Simple Will provides for the outright and simple distribution of uncomplicated assets of a person ranging from liquid assets such as the Retirement Savings Account, monies in bank accounts, gratuity, group life insurance, co-operative contributions, shares and stocks, etc., to real assets and chattels.

   Consequently, when a person has no complication or complexity in distributing their assets, a Simple Will is ideal.

2. Comprehensive Wills

   In some situations, the simple distribution of a Testator’s assets upon death might not be enough to calm their fears or fulfil their desires.

   An example is where the Testator is afraid that their beneficiaries would squander the entire estate on wasteful expenditure. In such a situation, the Testator might create a Trust in the Will and insert a spendthrift provision to prevent the assets from being depleted.

   A Testator might feel, as a matter of faith or morality, the need to give back to society upon demise. In such a situation, the Testator may include a charitable trust in their Will. In the case of a Muslim Testator, the charitable trust may cover up to 1/3 of the entire bequest in the Will.

   A Testator may also have a physically challenged beneficiary who must receive constant care. In such a situation, the Testator may likewise include a Trust in the Will or give specific instructions for the upkeep and welfare of such a beneficiary.

   In each of these examples, a Simple Will is inadequate to accommodate the Testator’s desires. Therefore, the Testator would have to create a Comprehensive Will to accommodate their complex desires.

3. Joint Wills and Mutual Wills

   It is common among married couples in Nigeria to acquire property in their joint names. Such acquisition ranges from purchasing landed properties or highly expensive chattels, to opening joint bank accounts.

   In such circumstances, the acquired property belongs to both parties jointly and cannot be validly bequeathed by only one of the parties without the consent of the other.

   Consequently, jointly owned assets can be bequeathed in two main ways.

   The first is the use of a Joint Will. A Joint Will is a single document executed by more than one person. Although a single document, the joint Will confers the right of separate distribution of property on the Testators (makers of the Will) and will be treated as such upon admission to the Probate Registry. It is typically used to exercise a joint power of appointment, such as appointment of executors, trustees and guardians among others.

   Historically, Joint Wills have had an important role in ensuring that designated assets are bequeathed to a child from the marriage of the Testator and Testatrix (female testator). In its normal usage, a Joint Will may provide that upon the death of either Testator A or Testatrix B, the joint assets would pass to the surviving party for his/her use during his/her lifetime, after which it would then pass to their firstborn child.

   Each testator is free to revoke or vary the Joint Will at any time, whether or not the other person is still alive; any declaration in a joint will to the effect that it is to be irrevocable does not prevent the testator from subsequently revoking it.

   The second way of bequeathing jointly owned assets is by use of Mutual Wills. A Joint Will can also be a Mutual Will. In Mutual Wills, a common intention is expressed by the Testator and Testatrix in either a single document, or in two separate but mutually complementing Wills which are therefore also known as Twin Wills.

   Mutual Wills are highly technical and uncommon. Consequently, there is the legal requirement that the common intention is expressed in both separate Wills so that the Testator, acting alone, cannot change his Will without the consent of the Testatrix and vice-versa, notwithstanding that the other person is not a signatory to the Will.

   It is required that Mutual Wills are made pursuant to an agreement between the Testator and Testatrix to make such Wills and not to revoke them without the consent of the other. The agreement may be incorporated into the recital of the Will or by a separate document. Under English law (received into the Nigerian legal system), it can be oral or written but where it relates to land, the agreement must be in writing.

   In the normal usage of Mutual Wills, Testator A, on one hand, would bequeath the jointly owned assets to Testatrix B upon his death with the express instruction that upon Testatrix B’s death, the joint asset is bequeathed to a certain beneficiary. Testatrix B would then replicate the same provision in her own separate Will.

4. Muslim Wills (Wasiyyah)

   A Muslim Will is a Sharia-compliant Will that accords with the Faraid rules of distribution. (See UTL’s previous article: What Every Nigerian Muslim Should Know about Writing a Will).

If you still have difficulty seeing which Will applies to you, it is because the selection of a suitable type of Will should be informed by a person’s personal needs after consultation with a Will-writing professional. It is important to take advantage of the expertise of a professional in arriving at the most suitable option to address your peculiar needs.

Secure a happily-ever-after for your loved ones.

Write your Will today.

NB: For expert advice on the type of Will suitable for you, visit UTL Trust Management Services Limited  here.